Citation Nr: 1025185
Decision Date: 07/07/10 Archive Date: 07/19/10
DOCKET NO. 07-13 527A ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent for
lumbar spine degenerative disc disease (low back disability).
2. Entitlement to an initial rating in excess of 20 percent for
overactive bladder syndrome (bladder disability).
REPRESENTATION
Veteran represented by: Florida Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
C. Fields, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1985 to November
2005.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2006 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida.
The Veteran was previously represented in this appeal by Disabled
American Veterans. However, he submitted a form (VA Form 21-22)
appointing the Florida Department of Veterans Affairs as his
representative in June 2009. As the current representative has
not yet submitted a statement in support of the issues on
appeal, i.e., a VA Form 646, such statement should be requested
prior to the case being returned to the Board after completing
other necessary development upon remand.
The Board notes that the Veteran's current representative
submitted evidence in October 2009 relating to a left shoulder
disability, stating that such evidence was in support of the
pending appeal. Although the Veteran filed a notice of
disagreement as to the initial rating assigned for such
disability in January 2006, he did not file a timely substantive
appeal after the issuance of a statement of the case in March
2007. Rather, the Veteran specifically appealed only from the
two issues as set forth above. See April 2007 VA Form 9. No
other communication has been received from the Veteran or his
representative that may be construed as an appeal from such
matter. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200-
20.202, 20.302 (2009). Instead, VA received a claim for an
increased rating for the Veteran's left shoulder disability in
June 2009, and it appears that development is still ongoing as to
that claim. As such, the issue of an increased rating for a left
shoulder disability is not currently before the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
Further development is necessary for a fair adjudication of the
Veteran's remaining claims. Although the Board regrets the
additional delay, a remand is necessary to ensure that due
process is followed and that there is a complete record upon
which to decide the Veteran's claims so that he is afforded every
possible consideration. See 38 U.S.C.A. § 5103A (West 2002); 38
C.F.R. § 3.159 (2009).
First, it appears that there are outstanding private and VA
treatment records that may be pertinent to the Veteran's claims.
Specifically, he has reported receiving treatment at VA
facilities in Gainesville and Jacksonville. Although the Veteran
has provided copies of some treatment records from such
facilities, there are references within the records themselves to
other treatment dates which are not currently in the claims file.
Further, the evidence reflects that the Veteran has also received
ongoing treatment from several private providers, including Dr.
B, neurosurgeon Dr. H, Dr. L, and possibly another provider with
Tricare. The Veteran has provided a few records from these
providers dated in 2006 and 2007, but it appears that further
records remain outstanding.
Although the Veteran filed his claim in June 2005, his initial
disability ratings are effective as of his separation from service
in November 2005. In determining the propriety of an initial
rating, the evidence since the effective date of the grant of
service connection must be evaluated. Fenderson v. Brown, 12 Vet.
App. 119, 126-127 (1999). As such, upon remand, the Veteran
should be requested to identify all VA and private providers from
whom he has received treatment for his low back or bladder
disabilities since separation from service in November 2005.
Appropriate requests should be made to obtain any outstanding
records, specifically to include the results of any imaging or
neurological studies. Even if the Veteran does not provide
further identifying information as to private providers, a request
should be made to at least Dr. H based on the identifying
information currently of record.
Additionally, the most recent VA examinations are dated in May
2008, and the Veteran has argued that his disabilities have
increased in severity since that time, and that such examinations
do not reflect the true severity of his disabilities. See Bolton
v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new
examination where a veteran claims the disability is worse than
when originally rated and the available evidence is too old to
adequately evaluate the current severity); Allday v. Brown, 7
Vet. App. 517, 526 (1995) (VA must provide a contemporaneous
medical examination where the record does not adequately reveal
the current state of the claimant's disability). The majority of
the Veteran's arguments pertain to his low back disability.
However, there is an indication that his bladder disability may
be related, at least in part, to such disability, as he reports
that his bladder symptoms are worse with increased back pain.
Therefore, upon remand, after all available treatment records
have been associated with the claims file, the Veteran should be
scheduled for another VA examination with an appropriate medical
professional for each of his claimed disabilities in order to
ascertain their current severity.
Accordingly, the case is REMANDED for the following action:
1. Request the Veteran to identify any
providers who have treated him since
separation from service for any symptoms
of his low back disability or bladder
disability; and to complete an
Authorization and Consent to Release
Information to VA form (VA Form 21-4142)
for each non-VA provider. After obtaining
the necessary authorizations, request
copies of any outstanding treatment
records, including but not limited to any
records from Dr. B, Dr. H, Dr. L, and VA
facilities in Jacksonville and Gainesville
dated from November 2005 forward, to
include the results of any imaging or
neurological studies. All requests and
all responses, including negative
responses, must be documented in the
claims file, and all records received
should be associated with the claims file.
Requests for VA treatment records must
continue until a determination is made
that such records do not exist or any
further efforts to obtain them would be
futile. If any records cannot be obtained
after appropriate efforts have been
expended, the Veteran should be notified
and allowed an opportunity to provide such
records, in accordance with 38 C.F.R.
§ 3.159(c)&(e).
2. After completing the above-described
development, schedule the Veteran for a VA
spine examination and a VA genitourinary
examination to determine the current
severity of his low back and bladder
disabilities. The entire claims file and
a copy of this remand should be made
available to each examiner for review, and
such review should be noted in the
examination reports. All necessary tests
and studies should be conducted, to
include both musculoskeletal and
neurological symptoms, as appropriate.
Any opinion offered must be accompanied by
a complete rationale, which should reflect
consideration of both the lay and medical
evidence of record. If an opinion cannot
be offered without resorting to
speculation, the examiner should indicate
such in his or her report and explain why
a non-speculative opinion cannot be
offered.
3. After completing any further
development as may be indicated by any
response received upon remand,
readjudicate the claims based on all lay
and medical evidence of record. With
respect to the low back disability, such
adjudication should reflect consideration
of a separate rating for any associated
objective neurological impairments. If
the claims remain denied, issue a
supplemental statement of the case to the
Veteran and his representative, which
addresses all relevant law and all
evidence associated with the claims file
since the last statement of the case.
Allow an appropriate period of time for
response.
4. Request the Veteran's current
representative to submit a statement in
support of the issues on appeal, i.e., a
VA Form 646.
Thereafter, the case should be returned to the Board for further
appellate consideration, if otherwise in order. The Board
intimates no opinion as to the outcome of this case. The purpose
of this REMAND is to ensure compliance with due process
considerations.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). The purpose of the requested
examinations is to obtain information and/or evidence which may
be dispositive of the appeal. Therefore, the Veteran is hereby
placed on notice that, pursuant to 38 C.F.R. § 3.655 (2009),
failure to cooperate by attending the requested VA examinations
may result in an adverse determination. See Connolly v.
Derwinski, 1 Vet. App. 566, 569 (1991).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).